Graham v Police
[2025] NZHC 806
•8 April 2025
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2025-488-000015
[2025] NZHC 806
BETWEEN JOSEPH PAUL GRAHAM
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 24 March 2025 Counsel:
S Litt for Appellant
JP Hamber for Respondent
Judgment:
8 April 2025
JUDGMENT OF DOWNS J
This judgment was delivered by me on Tuesday, 8 April 2025 at 10 am.
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, Whangarei. S-L Litt, Paihia.
GRAHAM v POLICE [2025] NZHC 806 [8 April 2025]
The appeal
[1] Joseph Graham received a sentence of two years and four months’ imprisonment for injuring a Police officer with reckless disregard for his safety.1 Mr Graham appeals that sentence. The appeal must be allowed if there is an error in the sentence and a different sentence should be imposed.2 The test is typically expressed as whether the sentence is manifestly excessive.3
Background
[2]Judge G L Davis helpfully captured the offending at sentencing:
[1] … The victim of this offending is a serving New Zealand police officer, and he was assaulted while dealing with a vehicle collision involving a pedestrian. The pedestrian is Mr Graham’s brother.
[2] At about half-past 12 in the morning of 23 June [2024] the victim was an incident controller for the serious crash on State Highway 10. The road had been closed as a result of the collision and cordons were managed by the fire service. The pedestrian was being treated inside an ambulance with the back doors partially open. Mr Graham and his brother arrived at the scene with no t-shirts on, they forced their way through the fire service cordons. [Another Constable] was in attendance and told them to stop and they barged passed her and made their way towards the ambulance. As Mr Graham approached the ambulance he was aggressively yelling about his brother, abusing police staff, and calling them “pigs”.
[3] The victim was concerned that Mr Graham and his brother were going to enter the ambulance and interfere with the treatment of the patient and told the ambulance staff to close their doors. Mr Graham approached the victim who had his back to the rear doors of the ambulance and without warning punched him in the face with a closed right fist. The victim did not see the punch coming nor had a chance to defend himself. He was immediately rendered unconscious due to the force of the punch, fell on to the ground hitting his head on the ambulance door as he dropped.
[4] Mr Graham got into the ambulance and was removed by three police officers. He and his brother had a physical fight and OC pepper spray was deployed. The victim was still unconscious on the ground beside the ambulance and was picked up by a member of the fire service.
[5]Mr Graham was subsequently arrested.
[6] The victim was hospitalised, received a laceration to his head and required three stiches, concussion, swelling and bruising to his head behind
1 Police v Graham [2025] NZDC 2313.
2 Criminal Procedure Act 2011, s 250(2).
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
[his] left ear, lacerations to his lower left lip, graze to his right knee and pain to his top front teeth and left shoulder.
[3] The Judge adopted a starting point of three years and four months’ imprisonment, reduced by 25 percent for a guilty plea, and a further two months for remorse. This, as observed, left a sentence of 28 months or two years and four months’ imprisonment.
The argument in a nutshell
[4] Mr Graham’s sole contention is that the starting point is too severe, hence the sentence too. On his behalf, Ms Litt argues this is because the Judge erred when assessing aggravating factors, in turn affecting band placement.
Analysis
[5] Nuku v R governs the starting point, in which the Court of Appeal identified these bands:4
(b)Band two: a starting point of up to three years’ imprisonment will be appropriate where three or fewer of the aggravating factors listed at
[31] of Taueki are present.
(c)Band three: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band three, even if there are few other aggravating features.
[6] The Judge considered the offending had four aggravating features: serious injury; an attack to the head; an attack on a public official in the execution of duty; and a situationally vulnerable victim because the officer did not anticipate the blow. He, therefore, placed the case within band three.
[7] Ms Litt argues the offending fell into band two or the bottom of band three, so a starting point of not more than three years’ imprisonment was justified. Ms Litt says
4 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38].
a single blow to the face causing unconsciousness, or a “king hit”, does not equate to an attack to the head in terms of Taueki v R,5 the case cited in Nuku.
[8] Like the Judge, I am unable to accept this submission.6 In Taueki, the Court of Appeal made clear this aggravating factor recognises the very serious consequences that may arise from targeting the head.7 Any attack to the head is, therefore, an aggravating factor, with the nature, number and level of force in connection with the blow(s) obviously affecting the degree to which the factor is engaged.8 The blow in question was single but powerful. It immediately felled the victim by rendering him unconscious. The seriousness of this aspect is self-evident. The Judge was right to treat this as a significant aggravator.
[9] The next issue is more nuanced. Ms Litt contends the victim was not vulnerable because he did not anticipate the blow. In her submission, any vulnerability arose from his role as a Police officer acting within the execution of duty, hence the Judge double-counted this factor in providing separately for vulnerability.
[10] Victim vulnerability is recognised as an aggravating factor by s 9(1)(g) of the Sentencing Act 2002: “that the victim was particularly vulnerable because of his or her age or health or because of any other factor known to the offender”. The factor was described this way in Taueki:9
Vulnerability of victim: Where the victim is particularly vulnerable (for example a child or where there is a disparity in size or strength between the attacker and the victim), that will also be a significant factor in the assessment of culpability. Section 9(1)(g) of the Sentencing Act applies. … Similar considerations arise with victims who are disabled in some way or otherwise defenceless.
[11]Subsequently in Sheppard v R, the Court of Appeal said:10
… the analysis of victim vulnerability in Taueki marked a shift away from attempts to categorise victims who are automatically considered vulnerable.
5 R v Taueki [2005] 3 NZLR 372 (CA).
6 Police v Graham, above n 1, at [11].
7 R v Taueki, above n 5, at [31(e)].
8 For example, see Edwardson v Police HC Rotorua CRI-2011-463-86, 15 December 2011 where Lang J upheld the aggravating factor of attack to the head for a single, significant blow to the victim’s jaw.
9 R v Taueki, above n 5, at [31(i)].
10 Sheppard v R [2013] NZCA 639 at [16] citing Graham v R [2011] NZCA 131 at [13].
It is preferable to undertake a more fact-specific enquiry into the features of the victim and the circumstances they were in at the time of the offending. As this Court observed in Graham v R:
Many victims will have been vulnerable to some extent. Whether or not a particular factor truly aggravates offending will be a question of fact and degree requiring judicial assessment.
[12] In Sheppard, the victim — a security guard at a bar — was unexpectedly stabbed with a screwdriver by the defendant, a patron. The Court held there was no vulnerability aggravating the offending, because “recognising vulnerability in the present situation would mean that all victims suffering an unexpected attack would be classified as vulnerable”.11 While Sheppard does not appear to hold vulnerability could not arise through surprise on the part of the victim of an attack, nothing in this case exists to justify the unanticipated nature of the blow as a distinct aggravating factor. So, on this issue, I accept Ms Litt’s contention. However, it does not follow the starting point was wrong. Band three is engaged when three or more aggravators apply, and three did. Their combination is serious. Pre-Nuku case law is illustrative.
[13] In Maihi v Police, a Police officer attempted to arrest Mr Maihi.12 He threatened the officer with a guitar. When the officer approached, Mr Maihi punched him in the face, causing him to fall to the ground. Mr Maihi punched the officer again in the face as he attempted to stand. A starting point of three years and six months’ imprisonment for wounding with intent to injure and assault with a weapon (threatening force with the guitar) was upheld on appeal.
[14] In Edwardson v Police, Police were called to a family harm incident.13 After being arrested, Ms Edwardson said she intended to “smash” the officer. She then kicked the officer to the face. One of her blows broke the victim’s jaw. A starting point of three years’ imprisonment was upheld for injuring with intent to injure.
[15] R v Davoren14 and R v Waihape15 involved a father and son who injured with intent to injure. The pair encountered two Police officers. Verbal abuse led to violence
11 Sheppard v R, above n 10, at [17].
12 Maihi v Police [2012] NZHC 1007.
13 Edwardson v Police, above n 8.
14 R v Davoren HC Napier CRI-2010-016-240, 13 May 2011.
15 R v Waihape HC Gisborne CRI-2010-016-240, 7 December 2010.
on arrest. The son struck one officer to the back of the head. He then grabbed the officer’s tie, strangling him. The victim briefly lost consciousness. The son then repeatedly punched him in the head. The father repeatedly punched the other officer to the face, while the latter was on the ground. A starting point of three years’ imprisonment was adopted by this Court for each defendant. No appeal appears to have been taken by either.
[16] In R v Grant, the defendant was in a holding cell with a co-defendant.16 When a Police officer came to their cell, the co-defendant pulled the officer into it, and repeatedly assaulted him. The officer briefly lost consciousness. Both defendants then fled the cell and courthouse. The defendant was convicted as a party to the violence (and as a joint principal for escaping). A starting range of three-and-a-half to four years’ imprisonment was upheld for aggravated injury and escaping lawful custody.
[17] These cases provide support for the starting point adopted by the Judge, especially Maihi v Police.17 Equally valuable is the unmistakable principle throughout the cases: attacking a Police officer in the course of duty is a “serious aggravating factor”.18 Denunciation; deterrence; and protection of the community are, therefore, pre-eminent in this situation.19
[18] Mr Graham’s offending squarely engages these principles. He forced his way through a cordon at an accident scene, verbally abused Police personnel, and then struck an officer powerfully to the head, causing him to fall to the ground, unconscious. The victim does not appear to have suffered lasting injury, but that reflects providence. That Mr Graham was emotionally labile at the time was recognised by the Judge’s discount for remorse.
16 R v Grant [2009] NZCA 266.
17 Maihi v Police, above n 12, at [23] citing R v Brown [2009] NZCA 288 at [14]–[17]; and
R v Fanguna [2009] NZCA 316 at [27].
18 R v Grant, above n 16, at [10].
19 Cooper-Siggleko v R [2012] NZCA 580 at [12] citing R v Thomas (2003) 20 CRNZ 538 (CA) and R v Williams CA177/96, 20 August 1996; R v Namana [2001] 2 NZLR 448 (HC) at [22]; and R v Grant, above n 16, at [5].
[19] While an error has been identified then, no question arises of a different sentence because that imposed is not manifestly excessive.
Result
[20]The appeal is dismissed.
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Downs J
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9
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